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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: PHOSPHATE HOLDINGS, INC. | MISSISSIPPI PHOSPHATES CORPORATION You are currently viewing:
This Employee Retention Agreement involves

PHOSPHATE HOLDINGS, INC. | MISSISSIPPI PHOSPHATES CORPORATION

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Title: EMPLOYMENT AGREEMENT
Governing Law: Mississippi     Date: 10/14/2008
Law Firm: Butler Snow    

EMPLOYMENT AGREEMENT, Parties: phosphate holdings  inc. , mississippi phosphates corporation
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Exhibit 10.11

 

 

EMPLOYMENT AGREEMENT

by and between

C. E. McCRAW

and

PHOSPHATE HOLDINGS, INC.

and

MISSISSIPPI PHOSPHATES CORPORATION

T HIS E MPLOYMENT A GREEMENT is entered into effective as of the 1st day of January, 2008 (“ Effective Date ”), by and between P HOSPHATE H OLDINGS , I NC . , a Delaware corporation (“ PHI ”), M ISSISSIPPI P HOSPHATES C ORPORATION , a Delaware corporation and wholly-owned subsidiary of PHI (“ MPC ”), and C. E. M C C RAW (“ Executive ”). PHI and MPC may be referred to collectively as “ Employer .”

WHEREAS , Employer believes that the continued services of Executive will be of substantial benefit to Employer and desires to assure itself of the continued availability of such services;

WHEREAS , Executive desires to continue employment with Employer on the terms and subject to the conditions hereinafter stated.

NOW, THEREFORE , in consideration of the above premises and other good and valuable consideration as herein recited, the parties hereto agree as follows:

1. Employment; Term . Executive shall serve as the Secretary of PHI and as Chief Operating Officer of MPC, as more fully described herein. The principal place of employment will be within a 50-mile radius of Jackson, Mississippi.

The initial term of this Agreement shall begin as of the Effective Date and (subject to earlier termination pursuant to the terms of this Agreement) shall terminate on December 31, 2008 (the “ Initial Term ”). Upon the expiration of the Initial Term, the term of this Agreement shall be automatically renewed annually for successive terms of one (1) year (each, a “ Renewal Term ”), unless either party notifies the other party in writing of the non-renewal of this Agreement at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term thereafter.

2. Duties and Responsibilities . Executive shall report directly to the Board of Directors of Employer (“ Board of Directors ”). Executive shall be the chief operating officer responsible for the day-to-day operations of both PHI and MPC and shall perform such duties and responsibilities as may from time to time be determined by the Board of Directors. Executive shall be a full-time employee of Employer and shall exert his best efforts and devote


substantially all of his time and attention to the affairs of Employer. Executive shall cooperate fully with Employer’s officers and employees in conjunction with their efforts to develop, commercialize and market Employer products.

3. Compensation . Employer shall pay to Executive for his services hereunder the following compensation:

(a) Base Compensation . Executive’s annual base salary shall be Three Hundred Twenty-Five Thousand Dollars ($325,000) payable by Employer in accordance with Employer’s payroll procedures (“ Base Compensation ”). Executive shall also be eligible to participate in the Management Bonus Plan described in Section 3(b)(i). Executive’s Base Compensation may be increased from time to time by the Board of Directors.

(b) Additional Compensation .

(i) Management Bonus Plan . Executive shall be eligible to receive bonuses (“ Management Bonuses ”) pursuant to Employer’s Management Bonus Plan, the current version of which is attached hereto as Exhibit A .

(ii) Tax Returns . Employer shall provide an allowance of Ten Thousand Dollars ($10,000) per year to Executive in order to cover the reasonable fees involved in the preparation of Executive’s federal and state income tax returns. This amount shall be paid to the Executive by the Employer by the fifteenth day of the third month following any calendar year of employment.

4. General Executive Benefits . During the term of this Agreement, Executive shall be entitled to the general retirement, profit sharing, health and dental insurance, term life insurance, long term disability insurance, salary continuation, hospital or other plans which may now be in effect or which may hereafter be adopted (“ Employee Benefits ”), it being understood that Executive shall have the same rights and privileges as other senior executive employees of Employer , except to the extent that such rights and privileges conflict with, or duplicate, the benefits provided to Executive under this Agreement. The proceeds of such life insurance shall be payable to a beneficiary designated by Executive.

5. Business Expenses . During the term of this Agreement, Employer will reimburse Executive for all ordinary and necessary business expenses incurred by him in connection with his employment upon timely submission by Executive of receipts and other documentation in conformance with Employer’s normal procedures, and in accordance with applicable United States Treasury Regulations. The Employer shall provide the appropriate forms to Executive to allow him to adequately substantiate and account for such business expenses.

6. Vacation . During the term of this Agreement, Executive shall be entitled to paid vacation, paid holidays and sick leave in accordance with Employer’s standard policies, as may be amended from time to time. If there is a conflict between PHI and MPC’s policies, then PHI’s policies shall control and be followed. Upon termination of Executive’s employment for any reason, accrued but not yet used vacation shall be paid within three (3) days of such termination.

 

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7. Termination .

(a) Termination for Cause . Notwithstanding any other provisions of this Agreement, Employer may, at any time, without prior notice, discharge the Executive “For Cause.” For purposes of this Agreement, “For Cause” shall mean the occurrence of any one of the following events:

(i) Any illegal or dishonest conduct which materially and adversely affects the reputation, goodwill, or business position of Employer or which involves Employer funds or assets; or

(ii) Any reckless or intentional material damage to property or business of Employer; or

(iii) Any material failure to follow procedures, directives or policies of the Board of Directors of Employer, which has not been cured within thirty (30) days (or if such failure cannot be cured within thirty (30) days, the Executive has not commenced and is not diligently pursuing such cure) after written notice of such material failure is delivered to Executive; or

(iv) Theft, embezzlement or misappropriation of Employer property; or

(v) Any material breach by Executive of the terms of this Agreement which has not been cured within thirty (30) days (or if the breach cannot be cured within thirty (30) days, the Executive has not commenced and is not diligently pursuing such cure) after written notice of material breach is delivered to Executive.

Termination pursuant to this Section 7(a) shall result in Executive’s immediate forfeiture of all rights and privileges under this Agreement, excluding accrued Base Compensation and vacation and any awarded but unpaid Management Bonus, allowing for deduction or set-off of any amounts owed to Employer by Executive, with respect to which Executive has previously agreed in writing that set-off is permissible. Payment of any amounts due to Executive under this Section 7(a) must be paid (unless otherwise set forth herein) no later than the fifteenth (15th) day of the third calendar month following the date of termination of Executive’s employment. For purposes of this Section 7. Termination , a Management Bonus shall be deemed to be awarded as of the last day of the Initial or any Renewal Term hereof and Executive’s proportionate share in any “Management Bonus Pool” shall be thirty-five percent (35%) for the Initial Term hereof and shall be Executive’s actual proportion of the Management Bonus Pool during the immediately preceding Initial or Renewal Term for any Renewal Term (“Executive’s Proportionate Share”).

(b) Termination for Good Reason; Termination Without Cause .

(i) For purposes of this Agreement, the following definitions shall apply:

 

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(A) “ Termination For Good Reason ” means the termination of Executive’s employment with the Employer by Executive within twelve (12) months of the occurrence of any one of the following events:

(1) a material change in Executive’s responsibilities and duties by the Board of Directors of Employer, excluding however reasons For Cause, it being understood that a change in job title or reporting lines will not alone qualify as Good Reason;

(2) the failure of Employer to pay Executive a material portion of his Base Compensation or any other compensation that is to be paid to Executive;

(3) Employer’s material breach of any material term of this Agreement; or

(4) a Constructive Termination which shall mean the actual termination of employment by Executive within forty-five (45) days of an occurrence of any one of the following actions without Executive’s expressed prior written approval: (a) any material reduction of Executive’s Base Compensation which (i) is not part of a general, Board approved, salary reduction applicable to all key employees or (ii) exceeds twenty-five percent (25%) of his Base Compensation; (c) any material reduction in Executive’s Employee Benefits that is not part of a general, Board-approved, plan reducing Employee Benefits; or (d) the change of Executive’s principal place of employment to a location more than fifty (50) miles from Jackson, Mississippi.

In the cases set forth above in subparagraphs (1) through (3), the Executive must notify the Employer, within ninety (90) days of the date of occurrence of one of the events specified above, that such event has occurred and the Employer shall then have thirty (30) calendar days to remedy the situation.

(B) “ Termination Without Cause ” means the termination of Executive’s employment by Employer for any reason other than (1) For Cause, or (2) termination due to Executive’s death or disability pursuant to Section 7(d) hereof.

(ii) Employer may terminate Executive “Without Cause” by delivering to Executive written notice of such termination, and Executive may terminate this Agreement for “Good Reason” upon written notice. In the event Executive’s employment is terminated Without Cause by Employer or for Good Reason by Executive, Employer shall pay to Executive an amount equal to the remaining Base Compensation due to be paid to Executive through the end of the Initial Term or any Renewal Term, whichever is applicable, plus accrued vacation, plus

 

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Executive’s Proportionate Share of any awarded but unpaid Management Bonus and/or performance bonus for the prior calendar year and a Management Bonus for the year of termination calculated based on “Annualized Income before Bonuses and Income Taxes,” which shall mean Income before Bonuses and Income Taxes (as defined in Exhibit A) through the last day of the month during which termination occurs multiplied by a fraction the numerator of which is twelve (12) and the denominator of which is number of months during the Initial or any Renewal Term, as the case may be, which begin prior to date that Termination occurs and Executive’s Proportionate Share, together with Employee Benefits through the end of the Initial Term or any Renewal Term, whichever is applicable, plus twelve (12) months of additional Employee Benefits thereafter.

EXAMPLE : Assume that Executive’s employment is terminated on June 15 of the Initial term and that Income before Bonuses and Income Taxes through June 30 of the Initial Term is Fifteen million dollars ($15,000,000). Therefore, Annualized Income before Bonuses and Income Taxes is Fifteen million dollars multiplied by 12/6 or Thirty million dollars ($30,000,000) and the Executive’s Proportionate Share is thirty-five (35) percent. Accordingly, Executive’s Management Bonus for the year of termination is determined as follows:

Annualized Income before Bonuses and Taxes—$30,000,000

Beginning Equity—$93,631,873

Executive’s Proportionate Share—$35%

Effective Tax Rate—38.25%

 

 

 

 

(30,000,000 x (1 - .3825)) - (.10 x 93,631,873)

  

x .35

10 + (1 - .3825)

  

 

 

Executive’s Bonus = $302,014

  

 

The Compensation described above shall be paid in one lump sum payment and (unless provided otherwise herein), it must be paid no later than the fifteenth day of the third calendar month following the date of termination of the Executive’s employment. All of the Employee Benefits payable, other than health coverage, must be paid or reimbursed no later than December 31, of the second year following the year of termination of the Executive’s employment. Nothing in this subsection 7(b)(ii) or elsewhere in this Section 7, shall not be construed or deemed to supersede any Employee Benefits or to reduce or limit Employee Benefits otherwise payable to Executive upon termination, provided that no duplication of any Employee Benefits shall occur as a result hereof.

(c) Resignation . Executive may resign by giving Employer thirty (30) days written notice of his intent to resign. Upon resignation, Executive shall have no claim to any future payments under the terms of this Agreement, excluding accrued Base Compensation and any awarded but unpaid Management Bonus and/or performance

 

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bonus, allowing for deduction or set-off of any amounts owed to Employer by Executive hereunder, with respect to which Executive has agreed in writing that set-off is permissible. All amounts payable under this Section 7(c) must be paid by the fifteenth day of the third calendar month following the date of termination of the Executive’s employment. All of the Employee Benefits payable, other than health coverage, must be paid no later than December 31 of the year following the year of termination of Executive’s employment.

(d) Termination Because of Death or Disability . This Agreement shall be terminated because of Executive’s death or disability. For the purposes of this Section 7(d), Executive is deemed disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months. In the event that this Agreement is terminated due to death of Executive, Employer shall pay in one lump sum to Executive’s estate the amount of Base Compensation due to Executive through the end of the month in which such death occurs, as well as any awarded but unpaid Management Bonus and/or performance bonus. Payment to the estate must be made in no event later than (i) end of the calendar year in which Executive’s death occurs or (ii) the 15th day of the third calendar month following the date of the Executive’s death. In the event that this Agreement is terminated due to disability of Executive, Employer shall pay to Executive the amounts and Employee Benefits described in Section 7(b)(ii) hereof.

(e) Specified Employee . Notwithstanding any provision set forth in this Agreement to the contrary, if the Executive is considered a “specified employee” at the time of his termination of employment that creates a “separation from service,” as that term is defined in Treasury Regulations § 1.409A-1(h), then while the Executive is a specified employee no distributions of compensation shall be made to the Executive during the first six (6) months following his separation from service, unless the Executive dies after his separation from service. During the six (6) month period of time the amounts otherwise payable shall be accumulated and paid to the Executive in a lump sum payment on the first day of the seventh month following the separation from service. The compensation held by the Employer may not be assigned by the Executive or made available to his creditors.

(f) Resignation from Board of Directors . Upon cessation of Executive’s employment by Employer, for any reason or reasons, and if Executive shall then be a member of the Board of Directors of PHI or MPC, Executive shall immediately resign from the Board of Directors of MPC and PHI, as applicable.

8. Ownership Acknowledgment and Assignment .

(a) For purposes of this Agreement the following definition shall apply: “ Work Product ” means all conceptual, technological, operating, training, marketing or other ideas, processes, designs, developments, and materials, specifically including all inventions, discoveries, improvements, enhancements, computer programs, mask works, written or other materials in any way pertaining to the existing or contemplated business,

 

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products or services of Employer, that Executive may develop or conceive of while employed by Employer, alone or with others, during or after working hours, and with or without the use of the resources of Employer. The determination of whether a Work Product exists should be made according to whether the development has any possible significance to Employer in Employer’s existing or contemplated business, regardless of whether it is technically eligible for protection under patent, copyright, mask work, trade secret law or other proprietary


 
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